2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit

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# Reine r t v . L a rk ins

P r e c e de n t i al or N on-P r e c e de n t i al : P r e c e de n t i al
D ocke t N o . 02-3184

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w . v i l l a no va . e du/thir dc ir c uit_2004/374PRECEDENT IAL

IN T HE UNI TED ST ATES C OURT OF

APPEALS FO R T HE TH IRD CIR CU IT

_________________ NO. 02-3184

_________________

SCOT A. REINERT,

Appellant

v.
DAVID H . LARKINS, SUPERINTENDENT; DIS TRI CT ATT ORNEY OF LEHI GH

COUNTY, JAMES MARTIN; *THE ATTORNEY

GENERAL OF PENNSYLVANIA, GERALD PAPPERT *(Pur suant

to Rul e 43(c ) F. R.A.P)

_________________ On Appeal from the United St ates Distri ct Court For The Easte rn D istrict of P enns ylvania (D.C. No. 98-cv- 05257) Distri ct Judge: Honorable Anita Brody

______________________ Argued May 3, 2004
Before: SLOVITER, FUE NTES and BE CK ER , Circuit

Judges
(Fil ed: August 10, 2004) THEODORE SI MON, E SQ. (AR GUED) Fifth Fl oor 1600 Market Stree t Philadelphia, PA 19103
Attorneyfor Appell

ant

JA M ES B. M AR TIN , ES Q. Distric t Attorn ey of L ehigh Co unty JOAN L . R EI NSMIT H, ESQ. (AR GUED) Deputy Dis tri ct Attorney KELLY B . WAL DRON, ESQ. Office of District

Attorney 455 West Hamilton St

reet Lehigh Cou nty Courthouse Allentown, PA 18101
Attorney s for Appel lees

_________________ OPINI ON OF THE COURT

_________________

BE CK ER , Circuit

Judge

. This appeal by Sco t A. Reine rt (“Reinert”), a state pris on e r servi ng a s entence of life imprison ment fo r firs t degree m urd er, from an order of the Di stri ct Cou rt denying his petition for a writ of ha be as co rp us , p re se nt s two c onge ries of issu es, on e dea ling w ith Miranda right s, and th e othe r with ineffect ive assis tance of couns el

. Consideri ng the Miranda is s ue s f ir st , w e must evaluate the admis sibi lit y of th ree statem ents made by Reine rt when he was being tran s ported to the hospi tal by2

emergency med ic al techni ci ans (“EM Ts”), accompanied by pol ice offi cers. The adm issibility of the first two statements—
one to an EMT and the o ther to an off icer, b oth of which were given prior t o the admini stra tion of an y Mirand a w arnings —turns on w hethe r Rein ert w a s in cus to dy atth e t ime he made the state ments. The ad missibility of the third statem ent, mad e to a polic e officer after a Miranda warning had been given, depends
on Reinert’s c om peten ce at th e time to waive his Miranda right s. The n we must determi ne whe ther Reine rt was competent to waive his Miranda right s when he made
a st at eme ntto two detectives at the hospit al follo win g su rge ry. We do not, of course, eithe r writ e or deci de on a b lank slate. The record cont ains fac t findi ngs by the s tate tri al judg e foll owing a suppress ion he ari ng, and our dec isi on making is const

rained by

the ri gorous standard of revie w under the Antiterrori sm and EffectiveDeath Penalty Act of 1996 (“AE DP A”), codified in relev ant part at 28 U.S.C. §§ 2241-2255.
W e are satisf ied tha t, at the ti me o f Reinert’s first statem ent, m ade to anEMT when he was being tr ansport ed to the hospit al for tr eatment ( at which time h e was n ot a cri me suspect and i ndeed was
cons ider ed a possibl e victim), he was not in custody , even thoug h a police officer
was prese nt i n the amb ulance. H owe ver, with respect

to the s econd statement made i n the ambulanceto a poli ce office r t o whom Reinert was “tur ned over” bythe EMT after hi s fi rst s eemingl y incri minati ng statem ent, we conclude that Re inert was in cust ody and t hat his preMiranda statement should not have been admitt ed. Deference is not due to thestate tri al judge’s finding and conclusi on to the
c ontrary because she mi stakenl y st ated that the secon d statem ent w as po st- Miranda warning. How ever, due to the f act that the statement was d uplicative of o thers prop erly recei ve d afterappropri at e Miranda warnin gs we re ad mi ni st er ed , w e con clud e tha t the e rror w as h arm less. Ad ditiona ll y, we are sati sfied t ha t whe n the post- Miranda st atem ent in th e ambulance and the su b sequ ent (po stsu rg er y) statement was mad e at the hosp ital, Reinert

was aler t a nd oriented and that his waiver

of Miranda right s was vo lu nt ar y. The stat e tri al cour t decisio n, in accord with thes e conclusi ons, was not based on an unre ason able determi nationof the facts i n light

of the evi dence present ed in the state court pro ceedi ngs, n or w as it contrary to oran unreasonabl e appli cati on of clearl y establ ished fede ral l aw as determi ned by the United Sta te s Su pr eme Co urt. The second set

of issue s bef ore us st ems from Rei nert’ s c la ims of ineffect ive assis tance of co unse l alleged ly in violat ion of his Six th A men dm ent rig hts. First , he complains of his state trial counsel’s failure to call a me dical e xper t to testifyat the suppress ion heari ng as to hi s all eged mental and phys ical inability to volu ntarily and knowingly waive his Miranda rights. How ever, o ur an alysis of the record will show that t

he expert testi mony that Reinert belie ved wo uld h ave h elped him w ould have made no differenc e to themer i ts of3

his Mirand a cla im. H e also s cores his
counse l’s failure to inform him o f his right to t estif y at

the suppr ession he aring, but
we conc lude th at this clai m too lacks merit. Rein ert has th us fa iled to dem onstra te that he was prejudi ced by his
counse l’s action s; mo reov er the s ta t e court’s conclusi ons on the i ssue were not contrary to or an unre ason able applic ation of cle ar ly e s tabli shed federallaw as determ in ed by th e Uni te d St at es Supreme Co urt. We will t

herefor e affirm the order of the Dist rict Court deny ing the pe tition.

I. Bac kgro und Facts On March 10, 1991, r esponding t o a tele phone call during which Reinert made
som e rather bizarre statem ents, his mother JanetKetner and h er hu sban d rush ed to h is home and f oun d him sitt ing on the first floorcovered i n blood, with large, v isible slashe s on both wrist s. Mr. Ketner call ed 911, describing Reinert as deli rious. Police an d ambulance services s oon arri ved. Reinert

looked st

range, and it was determi ned that he had recently atte mpted suici de by drinking al cohol, taking sleepi ng pills, and slashing his wrist s. At 12:11 p.m., Officer Jef frey Mert z (“Mertz”) arri ved, checked on Rei nert and his paren ts in the f ir st fl oor li vi ng r oom, and then went upst airs to check the parents’ report of a b ody on the third floo r. When Mertz reached t he thir d floor, he found th e bo dy of S ean Bra dy , Re i nert’s long ti me companion, anddetermi ned that he was dead. Sho rtly after M ert z’s arri val, three
more Allentown po lice officer s, Bruce Zim merman (“Zimmerman”), Rober t Lembach (“Le m bach”), and Brian Brader ( “Brad er”), arri ved at Reiner t’s home, followed by the EM Ts. Law enforcement officers sec ure d th e home . Th e EMTs examined Reinert; hi s blood pressure was dow n and his p ulse rate w as u p. T h e E MTs helpe d R einert to his fee t and h e then wal ked to the am bulan ce. A t this juncture, Zi mmerman wa s or dered by his superiors to remai n with Rein ert and told “not to l et him l eave y our cust ody. ” Reinert was laid on a s tretcher ins ide the am bu lan ce , ha d a n o xyg en ma sk placed
over his face, was given IVs in his arms,
a n d was hooked up to a n elect rocardi ograph. Reinert had been observed to hav e lacer ations to his w rists and he complained of

a n i njured ankl e. When he was in t

he amb ulance, the EMTs notice d multi ple lacerati ons t o his abdomen. Upo n discove ry of the abdominal wound, EMT Timothy Snyder (“ Sn yd er”) aske d Reinert “wha t happ ened ?” Reinert

responded “Istabbed him with a but cher k nife, th en I d id myse lf.” Snyder

at once turned to Offic er Zimmerman and stated, “I thi nk you ought to st ep in. ” Zimmerman then, without advi sing Reinert of his Miranda rig hts , asked him “what happ ened ?” R einert re spon ded to the questi on by st ating, “I thi nk I kil led hi m. I thi nk I stabbed him.” At t hat poin t, Zimmerman re a d Reinert his Miranda rights. See inf

ra note 3

. After readi ng Reinert his ri ghts, Zimmerman asked hi m:4

“And with these right s in mind, do you wi sh to t alk to us now?” Reinert repl ied: “I think Ikill ed him.” When asked whom he had k ill ed, Reinert res ponded: “Sean, Sea n B rad y,” “w ith a b utch er k nife .” Once at t he Le hi gh V all ey Me dical Center(“LVMC ”), Rei nert underwent preparatory treatment for su rg e ry by Nurses Tho m as G aviga n and Patricia Lombardo. Police of

fi ce rs were orde red by their superi ors to sta nd guard outs ide his ro om. 1 Reinert

entere d surgery

at appr oxim ately 1:15 p.m. Prior to su rg er y, Reinert wa s, of co urse, an estheti ze d. S u rgery lasted approximatelytwo and onehalfhours. Reinert

lost about hal f a pint of blood during the operation; he had also losta quart of

blood pri or to being treated by the E M Ts. R einert e xper ience d po stoperati ve pain , and wa s giv en R obi nal, a sedati ve and m uscle relaxa nt, at3: 30 p .m, andCefo xi ta n, an a nt ib io ti c, at6: 00 p .m. At 7:47 p.m. , Detective s Joseph Stauffer (“Stau ffer” ) and Glen n G ranitz (“G ranitz ”) arri ved at the hospit al. The det ect ives firs t spoke t o the attending physi cian, Dr. Homayoun Hashe m i (“Dr. Hash emi”), wh o testifie d that h e performed a post-ope rati ve check at 7: 30 p. m. o n Reinert , and found hi m awake, cohe rent, and w ith stabl e vita l signs. After conferri ng wit h D r. H ashe mi, th e detectives went to see Rei nert. They testifie d tha t theyfound him con scious, oriented, al ert , a nd r esp onsi ve. Th e y proceeded to interview him whil e he was lay ing in t he recovery r oom, wrist s and abdomen bandaged, at

tached t o I Vs and otherpost-ope rati ve equipment. They first read him his Miranda rights. Th e t wo detectives present

differi ng acco unts a s to how Reinert

responded t o the question: “Do you waive t

hese [ Miranda ] ri gh ts ?” Stauffer stated th at R ein ert ans wered the questi on verball y with a “ye s,” whereas Gra nitz sa idth atRei nert me rel y nodded his head. B oth detectives, ho wev er, agreed tha t Reinert clearly communicated to them his decisi on to waive his Miranda rights. The detectives t

hen questi oned him for forty -five minutes , d uring w hich Re inert stated that he had obtai ne d a knife, had gone to se e Se an B rad y, w ho was in bed, and stabbed hi m. Reinert’s cha rt indicated no abn ormality with regard to his abilit y to an sw er qu es tio ns ap pr op ria tel y. Dr. Ha shem i also testif ied tha t t he first administ rati on of med ication for pai n, spec ifically m orphine, was no t adm inis t ered to the de fendant until 10: 00 1 Zim merm an as ked G aviga n prio r to Reinert ’s treatment, at the doors of the trauma room, “to note down anythi ng that R einert sa id w hich m ay be of use to him.” Duri ng this surgic al preparati on, Gavigan asked R einert some questions, to which Reinert res ponded that he had been fighting with hi s fri end with a knife, theyhad fall en off the bed and t hat he, th e fri end , mig ht h ave don e this

. Reinert also acknowle dged he might have wounded himself, and that he had fallen dow n the stairs. How ever, Reinert ’s res ponse to t

he nurse i s not at issue o n app eal.5

p. m. We w ill amplifythis factual background in our di scussi on o f th e proc edural historyand the merits issues, infr a.

II. Procedural H istory On or abou t Marc h 10, 199 1, Reinert
was arres ted and charged with the cri minal ho m icide of Sean Brady. Pre-trial motions, includ ing m otio ns to suppress phy sicalevidence and statem ents, were he ar d be fo re Ju dge Car ol K. McG inley of the Court of Common Pleas of Lehigh C ou nt y. After a hearing, t he suppress ion motions were deni ed. The suppressi on court made a number of relevant findi ngs. Fi rst, it reject e d Reinert’s claim that his p r e- Miranda statement should be di smissed, find ing tha t the statement was “volunteered by the defendantto P ar ame dic S nyder . . . in response to a routine que sti on by paramedi c S nyder .” The court further
conc luded that:

. . . a lthough th e police w ere prese nt, the re is nothing in t he situ at ion which would lead a
reaso nable man to belie ve that he
was und er arres t o r i n the custody of the pol ice. The arri val of the police at th e scene was due to a
re quest m ad e o n h is b eh alf by h i s motheran d her husband, and the defe ndant’s transport to th e HospitalCen terwas voluntary on his part. The mere facttha t poli ce were present

was not in any

way indicative that the defe ndan t was in their custody . Thei r presence wo uld be exp lai ned by many things, includi ng a d esi re to interview an important witnes s ora desire to pr ot ect

a po te nt ia l v ic ti m. We c on clude therefore t hat the statement mad e to pa rame dic S nyder was not made while t he defendantwa s in cust ody and, furthermore, that i t was not made pursuant to interro g ation by

police officers. Second, th e suppress ion court concluded that: The defendant r emaine d conscious, ale rt and oriente d throughout

his t ransport to the hosp ital. No medication was administered to him in the car e of the Emergen c y MedicalService Un it. Then, after d escrib ing h is treat ment in the emergency room , t he Court found that Reinert

. . . remained alert and c oher ent. He responded t o qu esti on s concerni ng alle rgi e s to medication and to the appr oxim ate time of h is most recent

tetanus ino cula tion

. He indicated he w as allerg ic to penici lli n. Ms. Lom bar do observed that his blood p ressure was stabl e, thathis pu lse w as pro viding him
w ith adequate oxy genati on to the brain, a n d she performed the Glasgow coma score t o determi ne6

his level of cons ci ousn ess. In a ll categories the defendant rece iv ed the highe st poss ible s core. Turning to the ne xt ph ase o f the treatm ent, the sur gery , from which Reinert returned at approxi mately4:05 p.m. , the suppress ion court

found:
At 7: 47 p .m. Detecti ve Stauffer arri ved at the hos pital w ith Detecti ve Gr an itz. After speaki ng to the a tte nding p hysician, Dr. Homayoun Ha shem i, the det ecti ves proceeded to interview the patien t. The questi oning began at least five hours after

the defen dant’s surgery had been complet ed.
De te c tive Stauffer de termine d that the patie nt was consci ous and oriented. He aske d him his da te of birth and his so cia l secur ity
num ber, both of which were l ater verifi ed as a ccu rate. He aske d him otherqu esti ons to determ in e whether or n ot the defendant was aware of his surro u ndings and received satisfactory answers. After determi ning that the defe ndant was able to b e responsi ve, De tect ive Stauf fe r advisedhim o f his right s, fol lowing which the def

e ndant sai d he underst ood his right s and he agreed to spea k w ith the p olice

. Detecti ve Gra nitz also as ked q uestion s to determi ne the ca pacity of th e defe ndan t, both at t

he beginni ng and th e end of the statem ent. T h e defen dant, upo n questi on i ng by Detective S tauffer,
ma de incriminating statem ents. In the course of making thes e statem ents the defendant was volu ble , and vol unteere d information not specifi call y sought by Detecti ve Stauffe r. The que stio ni ng e nde d at

8: 30 p .m. Dr. Has h emi test

ifie d that he had performed a post -operative check at 7:30 p.m. o n th e defe ndan t, that hehad seen that t he de fendantwa s aw ake, c oher ent, and had s table v ital signs. H is chart indicated no abno rmality w ith regard to th e defe ndan t’s ability to
answer qu es tio ns ap pr op ria tel y. Dr. H ashe mi also testi fied that the first administ

rati on of medicati on for pain, specifi cal ly morphi ne, was n ot administered to t

he defendant until10: 00 p .m. Imm ediate ly follow ing h is statem ents to the police , the defendantwas se e n b y hi s f am ily, his close frien d Cind y Mellinger, and hi s mo ther’s m inister. A ll testifie d that he wa s extre mely softspoken at t

his time.
A jury tri al commenced on January 15, 1992, resulting in a verdic t of guil ty of murder in the firs t degree . Reinert was sentence d to li fe im prison men t. Time ly post-t rialmotions were de n ied as to all issues on November 15, 1994. Thro u gh new (and prese nt) cou nsel, Reiner t appe aled to the P enns ylvania7

Superior Court. Duri ng that appeal Rein ert rais ed the i ssue ofth e effe ctiveness of h is t rial counsel , submitting a number of

affid avits/letters in support of hi s i ne ff

ec ti ve ne ss cl ai m. On Jan uary 23, 1996, t

he Superior

Cou r t denied relief on all gro unds in a Me mora ndum Opinion, de nyi ng th e ineffectiveness clai ms withoutorderi ng an evidentiary hear ing

. Inter a lia , the Superior Court st ated: After reviewing th e r ec or d, we find that trial cou nsel tho roug hly crosse xamine d all of th e C o mm onw ealth’s witne sse s regardi ng Reiner t ’s mentaland ph ys ical state at the time he was given Miranda warnings and when he made st at ements to bot h the poli ce and the medica l st aff. Mo re over, we note th at th e Comm o n w e alth produce d
ove rwh elming evi dence tha t R einert ha d knowingly an d volu ntarily waived his Miranda rights. Thus, we conclude t hat trial counsel w as not i neffecti ve for fail ing to cal l medicalexperts at the suppress ion hea ring

. Se e [ Co mm onw ealth v. Wil liams , 640 A.2d 1251 (Pa. 199 4) ] (counselwas not ineff ective for fa il ing to call expert witne sses w here h e exten sively cross- examined poli ce officer and do ctor r eg arding their testimony); see als o Co mm onw ealth v. Logan , 549 A.2d 531 (Pa. 1988) (couns el was not ineffective f or fail ing to empl oy psychiatric te sti m o n y a t suppress ion hearing to dem onstra te that defendant’s mental illness prevente d proper w aiver o f Miranda right s where evidenc e indicated defendant was aware of nature of right and consequence of waive r). The Superior Court also rejected Re inert’s contention that he w as denied e ffecti ve assis tance of

co un se l b ec au se hi s a tto rn eys fail ed to advis e him that he could t esti fy at the suppress ion heari ng. The Court found that he es tablishe d neith er w hat his test i mony wo uld h ave b een, n or ho w it
wo uld have altered the outcome of the hearing. There w as never a n eviden tiary hearing o n the ine ffecti veness i ssue, which
was rais ed for the first t ime in the Pen nsylvan ia Sup erior C ourt; the Superior Cour t rejected that

claim on the basis o f the rec ord b efore it.
A motion fo r reconsi derati on and/or reargument

was denie d by th e C our t. A petit ion for all owance of ap peal and a petiti o n for recons iderat ion of deni al of petit ion for all owance of

appeal were fi led and denied bythe Pennsy lvania S upr eme Cou rt on S e ptember 26, 1996, and December 11, 1 996 , resp ectiv ely. A petit ion for a w rit of certiorari was denied by the Unite d States Sup re me Court on October 6, 1997. This p e tition fo r a w rit of habeas corpus now before us was file d
on October 2, 1998, and was denie d by the Distri ct Court on July 8 , 200 2. A motions panel of this Court granted a certific ate of appe alability (“C OA ”). Reinert continue s to serve a s entence of l ife i mprisonment8

for mur der . Be cau se Rei nert’ s c la ims
w ere fully

adjudic ated i n state cour t, w e apply th e b y no w famil iar AEDPA standard of rev iew, w hich w e set fo rth in the margi n. 2 III. Admissibility of Reinert’s Statem ents A. Pre- Miranda St atem en t s t o E MT Snyder and Officer Zimmerman
As we have setforth abo ve, atth e t ime

2 Although our r eview of the Dis tri ct Co urt’s dec ision is ple nar y, Marshall v. Hendricks , 307 F.3d 36, 50 (3d Cir. 200 2) , u nde r AEDPA a nd the S upr eme Court’s de cisi on in Willi ams v. Taylor , 529 U.S. 362 (2000) , we must deny fede ral hab eas co rpus re lief to an y claim which was adjudic ated on the merit s in a state court proceeding unl ess such adjudic ation: (1) re sult ed in a deci sion that was contrary t o, or i nvolved an unreasonabl e appli cati on of, clearly establ ished Feder al la w, as determined by the Suprem e Cou rt of the U nited States; or (2) re sult ed in a deci sion that was base d on an un reaso nable determi nation of

the fact s in l ight of the evi dence prese nted in t he Sta te co urt p roc eed ing

. 28 U .S.C. § § 22 54(d )(1) an d (2). A state
cour t decisio n is “co ntrary to ou r clearly established prec edent if the state co urt applie s a rul e that

contradi cts t

he gov ern ing law set f orth in o ur c ase s . . . . [or] i f the st ate court confront s a set of facts th at are m aterially indistin guish able from a decis ion of thi s Court and neverthe less arri ves at a result differe nt from our prece dent. ” Wil liams , 529 U. S. at 405-06. A state cour t deci sion involves “an unreasonable appl ication of” c learly estab lished f edera l law if it “unr easo nably ap plies the law o f this Court to t

he facts of a pris oner’s c ase.” Id . at 4 09. Thi s i s a n ob je ctiv e t es t: “[ A] federalhabeas court

making the ‘unre ason able a pplica tion’ inq uiry shou ld ask whether t

he state court’ s appli cati on of clearly establ ished fede ral l aw was objectively

unreasonabl e.” Id

. Moreover, “unre asonable” does not mean “erroneous .” Thus, “a federalhabeas
cour t may no t issue th e w rit simply beca use th at cou rt conc ludes in its independent

judgment that therelevant state-co urt dec ision ap plied c learly establ ished fede ral l aw erroneousl y or incorrectl y. Rather, that application must also be unreasonable .” Id . at 411. Th is s tan da rd do es no t ap pl y, how ever, to claim s that the state co urts did not address on themerits . In s uch ins tanc es we exe rci se the pre -AEDPA standar d and “conduct a de novo review over pure l egal quest

ions and mixed questions o f law an d fact. . . . How ever, the st ate court’s f

actualdetermi nations are still pre sum ed to b e corre ct, rebutt able upon a showing of clear and
con vin cing evid enc e. See 28 U .S.C . § 2254(e)( 1).” Appel v. Horn , 250 F.3d 203, 210 (3d Cir. 200 1).9

of his initi al sta tement Reine rt was i n the ambulance being te nded by t he E MT s. Af te r asking questions about his past medical history and allergies t o medications, E MT Snyde r, in an e ffort to find o ut how the inj ury to the abdomen
was sustai ned, asked Rei n ert what happened, receiving the resp ons e “I stabbe d him with a but cher knif e, then I did myse lf.” At th is point, Snyder notifi ed Officer Zimmerman and went on w ith his treat ment

. Wh en asked whether he was payi ng atte ntion to the conversation taki ng place between Offi cer Zim m erm an and Rein ert, Snyder

responded: “No, my job is to administer emer genc y care, andmy patie nt is m y prior ity.” After Snyder

asked Zim merm an to step in, Z imme rman, w ithout advising R einert of his Miranda ri ght s, as ke d hi m “wh a t happ ened ?” and Reinert responded t o the questi on by stati ng: “I th in k I ki ll ed h im. I think Istabbe d him .” At th at poin t, Zimmerman read R einert h is Miranda ri ghts. Mo re specifically, Zimme rm a n read to Reinert the standard Miranda Card, th e text of

which we set fort

h i n th e margin. 3 At t

ri al , Zi mme r man testi fied that t he foll owing colloquy

ensued. Q. Did M r. Reinert respo nd to this first question, “did h e unde rs ta nd his ri ght ?” A. As best as he could , y eah, he – t hey were working on him and he, you know, he ki nd of

nodded and then he sai d yes , or y eah. Q. Did he actually vocalize words? A. Right, yeah. Q. H e said, “ yeah”, co rrect? A. Correct Q. An d you th e n as kedhi m a s econd questi on, and what di d he respond then?
A. He basical ly just

said, “I thi nk I kill ed hi m ” H e d id n’ t sa y yes, and then go on – he just

started ta lking. Q. And what else did he sa y, or did you ask any furt

her questions?
A. Yeah, I sai d, again, going back to tha t fir st thing, “ I thi nk I kil led hi m, I stabbed him.” Isaid “Who did you k ill?” An d he said , “Se an.” And I aske d , “ Sean Brad y? ”

3 “My name is Officer

Bruce Zimmerman of the Allentown Police Department. I wish to a dvise y ou that you hav e an a bsolu te right to rema in sil ent. That any thing y ou say can and will be us ed against

you i n a Court of law. That y ou have the right to talk to an attorney before and have an attorney pre sen t wi th you dur ing que stion ing

. That if y ou cannot affor d to hire an attorne y one w ill be ap poin ted to repres ent y ou, without

charge, before any questi oning, i f you s o desir e. And if y ou decide t o answer any questi ons you may stop at any time you wis h. Do you und erstan d thes e rights I’ve ex plaine d to you? And with these ri ghts i n mind, do yo u wis h to ta lk to us n ow?”10

and—or he said, “Sean Brad y,” I said, “Is that the gentlem en upstairs
on the third floor ?” He sai d , “Y es.” I sai d, “How did you do it ?” He said, “W ith a butcher knife. ” Reinert argues at

great l ength that he
was in cus tody at the time of t he ambulance state ments. His princi pal contention s a re the f

ollowing: (1) The police had enter ed his home and control led it (though t

hey had e ntered at his mother and stepfa th er’s requ est); (2) th e investigati ng offic ers w ere dire cted to accompany Reinert

in the ambulance and keep him in their custod y; and (3) the officers we re in clo se pro ximity to Reinert in the ambulance . Rei nert contends t hat these fa ctors combined in suc h a way that
a re as onabl e ma n in his situ ation w ould not thi nk himself “ free t o leave. ”
It is not entirelyclea r f

rom R einert’s brief whether he obj ects to the st atement made to the EMT or only to the onemade to Zim merm an, bu t we w ill assume that obj ectio n is m ade to b oth

. 1. The pre- Miranda s t atem en t t o E MT

Snyder The state tri al judge found as follows: The firs t st atement i s that
s tate ment vo luntee red b y th e defendantto param edic Snyder. At the time th e statem ent w as m ade, it
was voluntee re d by the defendant in response to a routine questi on by param edic Snyder. It was not soli cite d by the polic e. Fu rthe rmore, although t he p olicewere p resent, there i s n othing in the s ituat ion whi c h
wo uld l ead a reaso nable man to belie ve that he was under arr est or in the cus tod y of t

he polic e. The
ar rival of the pol ice at the scene
was du e to a re ques t mad e on h is beha lf by hi s mo ther and he r hu sband, and the d efenda nt’s trans por t t o the Hospit al Center was v oluntary on his part. Th e mere factt h at poli ce were present was not in anyway indi cati ve that the defendantwa s i n t he ir c us to dy. The ir presence c ould be exp la ined by man y things, inc ludin g a desire to in te rv ie w an i mp ort ant witness
or a desire to protect a pot entia l vi ct im.
We conclude, theref

ore, t hat the statement mad e to pa rame dic Snyder was not made whi l e the defendantwas in cus to dy, and, furthermore, that it w a s not made pursuant to interrogation b y pol ice officers. The questi on, of

course, is whether

the state cour t’s determ ination that R ein ert
was not in c ustod y is contr ary to , or involvedan unreasonabl e appli cati on of, clearly establ ished fede ral l aw , as determi ned by the Supreme Cour t of the United States , or r esulted in a decisi on that
was based on a n unreasonab l e determi nationof the fact s in li ght of the evidence present ed in thestate cou r t proceedi ng. We do not bel ie ve tha t this standard is met b y Reine rt with r espe ct to11

the statement made to the EM Ts. Reine rt
was not in custody , nor was he a s uspectin
a crime when he entere d the ambulancefor the pur pos e of medi caltr eat

me n t and trans port t o the hospit al. Although police officers accompan i ed Reinert in the ambulance, at that ti me office rs had the limi ted kno wle dge that a body was found insi de the house and t

hat Reinert appear ed to b e wounded. Officers could have
reaso nably assumed that Reine rt was a victim who could po ssibly identify a third person that mayhave been in t he hou se. Snyder stated th at polic e off icers reg ularly ride with him i n the ambulance and that he request ed police officer s to a cc ompany him on thi s occasi on. O rd in ar ily, in dete rmining w hether an indivi dual is in cus to d y, the ultima te inquiry is “w hethe r there is a ‘formal arrest
or restraint

on freedom of movement’ of the de gre e as soc iated wit h a f orm al arr est.” Ca lifornia v. Behele r , 463 U.S. 1121, 1125 (1983) (quoti ng Oregon v. Mathiason , 429 U.S. 492, 495 (1977) (per curiam)). When the indivi dual has not

been openlyarres ted when the sta tements a re m ade , “‘somethi ng must be sai d or done by the authoriti es, eithe r in t heir manner

of ap proach or in t

he tone or e xtent of

t hei r questi oning, wh ich ind icates th ey wo uld not have heed ed a re ques t to dep art or to al low the suspe ct to do s o.’” Steigler v. Anderson , 496 F .2d 793, 79 9 (3d C ir. 1974) (quoti ng Un ited Sta tes v. H all , 421 F.2d 54 0, 545 (2d Cir. 1969 )). Reinert argues that the inter rogati on in the amb ula nce was custodi al becaus e he
was never tol d that

he w as fre e to leave or free not to ans wer ques tions. H e con trasts his situation with the one at is sue in United Statesv. Le ese , 176 F.3d 740 (3d Cir. 1999), where a postalemploye e suspected of having st ol en postalfunds was found not to be in c ustodyduring t he course of
an inter rogati on where she was tol d she
was not underarres t, t

hat she would not be made to go with her ques tioner s when they left, and during t

he course of whi ch s he
was allo wed t o take break s in ord er to
cons ult with her uni on re present ative

. Reinert argues that unlike in Leese whe re the suspect

was given ampl e o ppo rtunity to end questi oni ng and where she was
ex pli citly told t

hat she was not

under arrest, Reinert

was never afforde d simil ar information or opportunities

. Whi le the difference is real , it i s n o t disposi tive. Had Zim m erman made an explic it st at eme ntto Rei ne rt th at he wa s not under arrestor that

he need not ans wer questions, such a statem ent w ould surely have bolst ered the gover n men t’ s contention that

Sn y der’s que sti oning was non-cust odial in nature. However, the absence of such a

statement does not ipso facto turn ques tioni ng into a c ustodi al inter roga tio n, espe cially wh en th e q uesti oning is bei ng done by a med ica l professi onal in the cours e of providi ng routi ne me dica l care

. See Mathiason , 429 U.S. at 495 (“[P ]olice officers are no t require d t o administer Miranda warni ngs to everyon e w hom they que stion. N or is the requirement of

warnings t o be imposed simp ly bec aus e . . . the questi oned person is one whom the police s uspect. ”) Given that Rein ert w as i n the ambulance12

recei ving care for

an open wound and had
an oxygen mask cov er in g hi s face , i t s eems unlik ely that he could or would have left the EMT s’ car e, even if Z i mmerman had told hi m t h at he was at liber ty to do so. Under those cir cum sta nces, an e xplanation that he was not requi red to ans wer questi ons wo uld have no dou bt been m ore meaningful and mo re ap prop riate

. How ever, as we explai ned above, suc h a statem ent, wh ile help ful to d eterm ine th e custodi al nature of

the interrogation, is not
r equiredto render

an inte rrogation no n
custo dial.
Mo re to the point, although Offi cer Zim merman was present under the descri bed circumst ances, t he c ase of ambulance trans portation is oblique to the
core of “in custody” j urispr ud enc e wh ere the focus is on the rel ations hip between the office rs and the sus pect i n terms of putati ve coerci on and free dom to lea ve. In
ou r vie w, the prese nce o f Zim merm an in the amb ulanc e w as a b ackg roun d fac tor in te rms of R einert’s s tatem ent to S nyder. Reinert had e ntered t he ambulance volu ntarily an d was in the c harge of the EMTs who elici ted the ch alle nged st atementinno cently (they did not k no w Rei nert to be a criminalsuspect ) in t h e course of obtai ning routine medical information. U nder these circumstances, and other s re cite d above, we do not t hink that t he state tri al judge ’s det ermination
was ba sed on an un reasonabl e determ in at ion of the fact s in l ight of t he evidenc e. Nor was the legalconclusi on based th er eo n c on tra ry to or a n unre ason able applic ation of federallaw as determi ned b y the Su prem e Co urt.

Ac cord ingly we will a ffirm the order of the Dist rict Court on that

issue. 2. The pre- Miranda statement to Offic er

Zimmerman The statement made to O fficer Zimmerman in r espo nse to hi s “what happened” questi on (“I think I ki ll ed h im, I stabbed hi m.”) is an oth er m atter

. At that po intReinert

had made an incri minati ng statem ent, and when the EMT turned him
over t o Of

ficer Z imm erma n, he h ad to know that hewas a suspect being questi oned by a polic e off ic er. Prior to starting his quest io n, Zim merm an sh ould have, but f aile d to, read Rein ert his Miranda righ ts. T he state trial judge’s treat ment of this matter

was premised on a misapprehens ion or misst atement of t he facts—thatReinert

had been Mirand i zed alrea dy when, in fact , he had not : “The next statement made by the defendant was
a statement given to Officer Zimmerman in the ambulance . Pri or to this statem ent, OfficerZimmerman advised the defendant of his Miranda rights, following which the defendantind ica ted tha t he w ished to
an swe r ques tions.” T he C om mo nw ealth
now concedes that thejudge was mistaken in st ating t

hat Reinert was given Miranda warnings b efor e the sta teme nt t o Zimmerman. We m ust therefore rejec t the state court’ s findi ng with res pect t o the first ambulance st atementto Zimmerman. How ever, “[w]here a su bs equent confessi on is obtaine d consti tuti onally , the admissi on of pri or inad missib l e confessi ons [is] harmless er ror. ” United Statesv. DeS umma , 272 F.3d176, 180 (3d13

Cir. 2001) (quoting United Stat es v. Johnson , 816 F .2d 918, 92 3 (3d C ir. 19 87)) (first alteration in original). Because we conclude th at Reinert made subs eque nt, cons titutionally obtaine d , adm issible statements that m irr ore d his earli er un-M irandiz ed state men t, see infra Parts III. B and III. C, we ho ld that adm issio n of the i niti al st atement was harmless error , even under the st ringent
c onsti tuti onal error

standar d where w e may affirm only if t

he error is harmless beyonda rea son able dou bt. See United St at es v. Molina-Guevara , 96 F.3d 698, 703 (3d Cir. 1996) (ci ting Chapman v. Ca lifornia , 386 U .S. 18, 24 (196 7)).
B. T he P ost- Miranda Statem ent to Officer Zimmerman
At this po int, Zimmerman read Reinert his Mira nda right s. The i ssues pr esented by Reinert

are twofol d. He contends ( 1) that he was not phy sica lly and m entally capabl e o f knowingly , intelli gently , and volunt arily waiving his Miranda right s and (2) that even if he w ere, the post- Miranda statement was not vali dly obtaine d in li ght of his pr e- Miranda con fes sion

. 1. Competence and waiver The Supreme C ourt has fre quen tly arti culat ed the applic able waiver st andard. In Miranda v. Arizona , 384 U.S. 436 (1966), the Court held as t o w aiver and burden: The de fe nda nt may wa iv e effec tuati on of these rights , providedth e wa i ver is made volunt aril y, knowingly an d in tel lig en tly.
* * * If the i nterr ogation c ontinues withoutthe pres ence of

an attorney a nd a state me nt is ta ken , a heavy burden restson the government to dem onstra te that t

he defendant kno win gly and inte lli gently waived his pr ivil ege aga inst self

in c riminat

ion and h is right to retai ned or appointed counsel

. Escobedo v. Illinois , 378 U.S. 478, 490, n.14 [(19 64)]. This Court has alw ays s et high s tandards of proof for the waiver

of consti tuti onal righ ts, Johnson v. Zerbst , 304 U. S. 458 (1938), and we reas sert these standard s a s appli ed to in- custody inter rog ation

. Id . at 444, 475 (em phasis add ed). The Co urt made clear in Moran v. Burbine , 475 U.S. 412, ( 1986 ), the twopronge d test for w aiver: First, the reli nquishment of t he right must hav e be en vo luntary in the sens e that

it was the product

of
a free and del iberate cho ic e rathe r than intimid a tion, coerci on, or decepti on. Seco nd , the waiver must have been made w ith a fu ll
awareness of b oth the nature of the right being abandoned and t he
c ons equences of the decisio n to abandon it. Only if the totalit y o f the cir c umstances s urroundi ng the interrog ation reveal both a n uncoerced choi ce and th e requ isite14

level of comprehensi on m ay a court prop erly conclude that t he Miranda righ ts ha ve b een wa ived

. Id

. at 421 (interna l quo tati ons marks and citations omitted).
We have also ex plaine d that: This inquiry r equires us to consi der th e total ity

of the ci rcumstance s surroundi ng the interrog atio n , which include s examining the
even ts that oc curred and t he b ackground, expe rie nce, an d conductof

the d efe nda nt. Miranda rights w ill be de eme d w aived only whe re the t ot ality of th e circumst ances “reveal [s] both an uncoerced choice andt he req uisite leve l of c om pre hen sion .” United States v . Sriyuth , 98 F.3d739, 749 (3d Cir. 1996) (quoti ng Moran , 475 U. S. at 421 ) (cita tion s om itted ). The state tri al judgeconcluded, after the supp ression hearin g, that R e inert’s mental an d p hys ical states were such that he was “consci ous , al ert and oriente d on three s pher es.” S he ad ded th at: [T]he interview by Off ic e r Zimmerman wa s brief , th e inter rogati on routi ne, and the dete nt ion basical ly the res ult of circum sta nces create d by th e defe ndan t. Clea rlythere was no physi cal thr ea t to t

he defendant from the poli ce ina smuch as the int er view took place in th e ambulance in the presence of paramedics. We firmly conclude that there was no physi cal or psyc hologica l coerci on in the situation, no r in the que sti oning techni que u sed by Office r Zimmerman. This finding is clearl y su pp orted i n the record. EM T S nyder te sti fi ed at the suppress ion hearing that Reinert remained “conscious, alert , and ori ented throughout
our trans port” and t

hat he was “very much
aware and awake, and kn ew what was go ing on. I ex plaine d eve ry part of th e treat ment that I was doing for hi m, and he underst ood that f

ully .” When asked, “And th i s was during the enti re ti me when OfficerZimmerm an was talk ing to M r. Reinert as well?”, Snyder responded, “T hat’ s correct .” In s um, Snyder stated that Reinert answered allques tion s posed to him “ in tellig ently .” Office r Zimmerman testifie d that Rei nert was “lu cid and coherent .” And Officer Lembach, wh o w as also in the ambulance , testifie d that Rei nert was al ert and cohe rent, and that his answ ers to questions asked in th e amb ulan ce were respons ive and p erti nent and di d not go off on tang ents

. As noted above, Reiner t had wa lked to the ambulance. The record of t reatment administered to him in the ambulance was unexcepti ona l

. Reinert was wearing an
ox ygen mas k bu t that did not im pai r communicati on. He was receiving IV fluids and was connect ed to a n elect rocardi ogr aph. His vital signs w ere monitored. But none of t his im paired his coherence. Sup porting th is c onclu sion is the testimony of N urse P atricia Lombardo15

of LVM C wh o, shortly after Reinert’s admissi on, obse rved him and administered the Glasgow coma test, about which she discour sed at some le ngth. The short of it is that Rei ner t r eceived the highest (Gl as gow ) score for

verbal and mot o r response, and for being a lert and oriented. His respi ratory r ate, vital sign s, etc ., were all good. Independe ntly , Nurse Lombardo
conc luded that R einert w as alert.
In opp ositi on to thi s welter of testimony the state trial judg e had only the t esti mony of Re inert’s mother a n d stepfather, wh ich it ha d the c lear righ t not to credit, an d did not cre dit. In this appe al, Reinert reli es lar gelyon the affi davits of two psyc hiatrist s who s e affidav its were offered at the Penn sylvania Superior C ourt level as appendic es to hi s dire ct appeal b rief. The Superior Court decli ned t o consider these a ffida vits and none of them
were before the tri al court. They were also atta ched to his federa l h abeas petiti on. These psyc hiatrist s, Dr. Lynn B ornfri end (“Dr. Bornfriend”) and Dr. Robert Sadoff (“Dr. Sadof f”), did not examine or witness Reinert during t

he time period in which he
was in the hos pitalor in the ambulance, and reli ed solel y upon the nar ra tives of Reinert’s familyand frie nds and ex ce rpts from t h e (subseque nt) medic al rec ords of LVMC. The Common weal th sub mi ts th at we cannotconsider

these af

fidavi ts which
were not a matter of

record andwhich are present ed to the Co urt me relyas att achm ents to a ple ading, citi ng Un it e d Statesv. Madkins , 994 F.2d 540, 542-43 (8th Cir. 1993) (citing United Stat es v. Drefke , 707 F.2d 978, 983 (8t h Cir. 1983) (holdi ng e ffo rts to supplement record by affid avits or atta ch men ts to brie f imprope r)). Reinert

cou nte rs with t

he argumentthat considerati on of these affid avits is necessary t o demonstrate the in effectiveness of his t

rialcounsel i n no t prese nti ng expe rt evide nce a t th e su ppressi on hearin g. Th is “cou nte r ”
se ems inadequate because the a f fidav its
are being pres ented in su ppo rt of two d iffere nt contentions: a merit s iss ue involvi ng Miranda r ights and a coll atera l issue involvi ng the ine ffe ct ive ass ist ance of coun sel. G iven th at these affid avits
were not part of the re cord before t he tri al
cour t, Reinert

most li kelypr oc edur ally default ed this line of

argumen t on his Miranda c laims, and should be al lowed only to use th e aff idavits in sofa r as his claim for ineff

ecti veness i s conce r ned. How ever, since th e aff idavits re late bo th to the Miranda and i neffectiveness issues, and since we willneed to examine the affida vits when we rea ch th e ineffectiven ess clai ms, we will, out of an abundance of cauti on, consi der the substanc e of the S a doff and Bornfri end affid avits— both of which conclud e t hat Reinert wa s not comp etent physi call y or men tally to waive Mira nda rights o r to make statem ents eith er i n the ambulanceor post-o perativ ely at the hospit al—in te rms of the Miranda claim s as w ell.
Dr. Bo rn friend relie s on a number of factors: (1) several nursi ng entri es descri bing Reinert

as confused afte r his admissi on to LVMC ; (2) lab evi dence of dehydr ation, blood los s, l iver damage and16

an extrud ing w oun d (th e occ asion for the subsequent

surgery ); and ( 3) an incre ased wh it e bloo d cell c oun t. Dr. B ornf rie n d opines that Rei nert was i n emotional shock, largely as the resul t of havi ng been in the house wit

h a co rps e for two days. She also makes reference to his re cent suici de at tempt. Dr. Sadoff rel ies on: (1) Reinert’s mo ther’s d escrip tion of his confusion; (2) the emotionalshock of th e alte rcati on with Sean Brad y; a nd (3) Reinert’s low blood pres sure and fast heart rate. We find this counter underwhelming,
s urely not en oug h to ren der the state tria l judge’s supp orted findings u nreas onab le o r to undermine her

conclusi ons of law under the AED PA standard as to the v a lidi ty of the wa iver an d the p ost- Miranda st a tement in th e am bul anc e. 2. V alidity of po st- Miranda statement Reinert argues that, even had h e b een competentto waive his Miranda rights i n the amb ulanc e, the p ost- Mirand a statem e nt wo uld n everth eless b e inva lid because it

fo ll owe d too quickl y on the heels of a non-Mirandi zed confessi on. To
su p port his contention, Reinert attempts, unsuccessf

u l ly, to disti nguish his case from Oregon v. Elst

ad , 470 U.S. 298 (1985). In Elsta d , a man suspec ted of burglary made an i ncriminating s tate ment in his o w n home without havi ng been Mirandized. He was taken t o the poli ce station, and a fte r he was advis ed of and waived his Miranda right s, the suspect produced a written c on fessio n. In h is
su bsequentpro sec utio n fo r bu rgla ry, t h e state trial cou rt exclu ded f rom evide nce h is first statement because he had not been given Miranda warnings, but admitted the written confessi on. Elstad was convi cted, but the Oregon Court of Appeals rever sed, hol d ing that the confession should also have been excl uded because of the brief period separating his ini tial , unco nstitution ally obtaine d statement and his subsequent

con fe ssion. In rever sing the Oregon Court of

A ppeals, the Unite d States Supreme Court expl ained tha t the failure of police to ad minister Miranda warni n gs does not mean that the statem ents recei ved have actua lly been coerced, but only th atcou rt s wi llpr es ume the privil ege agains t compulsor y self- incri minati on ha s not bee n intelligen tly exe rcise d. See Elstad , 4 70 U.S . at 30 4-1 1. The Court held t

hat it was “an unwarrantedextensi on of Miranda to ho ld that a simple f

ailure to admini ster

the warnings, unaccompanied byany ac tual coerci on or other

circumst ances calcul ated to und ermin e the su spec t’s ability to exercise his free will, so t aints the investigatory process t hat a subs equ e nt voluntary and info rmed w aiver i s ineffect ive for som e indeter minate period. ” Id

. at 309 . The Court furt her held t

hat alt ho ugh Miranda “requires that the unwarned a d missi on must be suppre ssed, the adm issibil it y of any subsequent st atement shoul d turn i n thes e circumst ances solel y on whether it is kno win gly and vol untari ly made.” Id. Absent de liber ate coercion or i mproper tact ics in o btaini ng a n unwarne d statem ent, a careful and thoroug h administ rati on of Miranda warnings cur es17

the conditi on that ren de red the unwarne d statement inad mis sible

. See id. at 311-12.
Re inert argu es th at no c ure co uld be made in his case becaus e the police creat ed coerci ve circumst ances and that other independent

circumst ances, s uc h as the injury a nd resul ting pai n, ta inted t he investigatory process be y on d r ep ai r
. We disagr ee. The Supreme C ourt’s most
re c ent pronouncement on t his i ssue supp orts our conclus ion. I n Missouri v. Seibert , 124 S. Ct. 2601 (2004), a suspect
was questi oned for 30 to 40 minut es and
c onfessed to her r ole in th e crim e o f
seco nd-d egree murder. She was gi ven a 20-m inute break and wa s onlythen Mirandized. After rece iving her Miranda warnings, she sig ned a wa iv er and the questi oning resum ed. D uring the po stMiranda questi oning, s he was confronted with her prewarni ng statem en ts, and was made to re pea t t

he i nfo rma t ion she had given be fore she w as M irandized. In holding unconsti tuti onal the inter rogati on techni que of inte ntiona lly wit hh olding Miranda rights to obtai n a confessi on and of su bsequentl y r eading the Mira nda right s and continui ng on with the i nterr ogation, the Supreme Court dis tingui shed Seib e rt fr om Elstad

in th e f ol lo w in g w ay: Elstad rejec ted the “cat out of the bag” theory tha t a ny s hort, earli er adm i ssion, obtain ed in a rgua bly innocent n eglect

of Miranda , determi ned the char acter of the later, warned confess io n, Elstad , 470 U.S. at 311- 14; on the f acts of that cas e, t he C ourt t

hought any causal connecti on between the first and second res po nses to the pol ice
was “sp ecu lativ e an d atte nua ted,” id

. at 313. Although the Elstad Cou rt expresse d no ex plici t concl u sion about either of ficer’s
s tate of mind, i t is fair to read El sta das tr eati ng the li ving room
conve rsat ion as a goo d-f ait h Miranda mistake, not o nly open to correct ion byca re fu l warn ings before systema tic que stionin g in that parti cular c ase, but

p osing no threatto war n-first p ractic e ge ne ra lly. See Elstad , [470 U.S.] at 309 (charac teri zing theofficer s ’ omissi on of Miranda warnings as “a simple failure to admini ster the warnings, un ac co m pa ni ed by a n y actu a l coerci on or othe r circumst ance s cal culat ed t o undermine the suspe ct’s ab il ity to exercise his free will”). Id . at 2612.
We are co nfide nt that R einert’ s case more clo se ly r ese mbles Elst ad’s than Siebert’s. Zim merm an’s in itial failure to read Reinert his Miranda righ ts, thou gh unf ortun ate and unexplai ned, seems much
more likel y t o have b ee n a simple f ailure to administer the warni ngs rather than an intent ional with hold ing t hat was part of a larger, nefari ous plot . While i t would have been pre ferabl e for Zimmerman to r ead Reinert his righ ts im me diately before elic iti ng the initial response, we conclude that the cure mandated by Elstad was met in this case and that , because R einert’s waiver was know ing and voluntary , the post- Miranda statement was pr o perly18

entere d into evi dence. C. The State ment at t

he Hospital Proba bl y the most i ncriminating statement made by Reiner t was that

made to Detectives S tauffer a n d Granitz a fter
su r gery at LVMC . In t hat st atement Reinert adm itte d that he had obtai ned a knife and then went t o see Brady , who was in bed, and st abbed him. We have alrea dy recounte d the ess entia l his toryof the
even ts after Reine rt ’ s admissi on to the hosp ital, see supra Par t I. W e have ampl ifie d that de scrip tion throug h recit ationof

the state trial judge’s fi ndings,
see supra Par

t I I; we will not

rescribe that materi al here. However, our revi ew of the record confirms t

hat all the fact s stated by Ju dge M cG in ley a re su pp or ted by t h e record.
As our fr ame of re fe re nc e, we reiterate that surgery (on March 10, 1991) l asted from 1:15 p.m. t o 3:45 p.m. , and the inter rogati on took plac e at about 8:00 p. m. It was discov ere d during surgery that one of the kn ife w oun ds in Reinert’s abdomen had also cut his liver. The surg ery consisted of an exp lo ra to rylapar ot omy to examine stab wounds to t he abdomen. The results were essentiall y negat ive, except fo r a non-bleedi ng lacer ation of the le ft lobe of the l iver anda large retr operitoneal hem atoma. There was no evidence o f injury to anyintr aabd om inal organ. Because t he retroperitoneal hematoma was stabl e, nothing was done, and the abdomen
was closed af

ter copi ous irrigati on. Reinert’s wrist l acerations were then repaired, and he was taken t o the Shock Tra um a U nit fo r ob serv ation

. We have scrutinized the en tire LV MC record. That recor d is consi stent with the facts chronicl ed abo v e, mo st imp ortantly that at ti mes relevant Reinert was alert

and oriented. Initially , the surgeon , Dr. Barry Slavin, reported that

Reinert woke up prom ptly and was awake and a ler t aft er recovery from anesthes ia. Morphine for pain wa s not a dm iniste re d until10:00 p .m., w ell a fter t

he statement at i ssue had been mad e. Re inert was also gi ven Ro binal, a sedati ve and muscle re laxant , at 3:30 p.m. and Cefoxi tan, an anti bioti c, at 6:30 p.m. The most important witness, how ever, wa s D r. Hashemi, the chi ef surgic al re si den t, who h ad c ome t o L VMC
a fer three y ears of s urgicalresi dence at Pr esby teri an an d t he U ni ve rsi ty o f Pennsy lva nia Medical Center . As noted above, Dr. Hashemi te sti fied that he had perf or med a post- operati ve check at 7: 30 p. m. on the defendant , and that hehad seen that Reinert was awake, coherent , and had stable vital signs. His chart indic ated no abno rmality with regard to R ei nert’s ability to a n sw er qu es tio ns ap pr op ria tel y. This testi mony accords wit h that of the detectives who questioned Reinert af ter his surgery and s aid tha t they fou nd h im conscious, oriente d, alert, and responsi ve. Array ed again st this soli d phalanx of evidence is the testimon y o f Reine rt’s mother, st epfather , a fr iend Cindy Me llinger, and Reinert’s m o ther’s pastor, Ro nald Keller, who s aw Reinert after the policeleft. Th ey all desc rib ed him as
ex treme ly quiet a nd so ft spo ken, k in d o f “mum bl y, ” heavily s edated. Reinert also contends t hat he was affected bythe presurgi cal med icine, es pecia ll y th e19

anesthes ia, and by t

he Robinal gi ven at 3:30 p.m. Additionall y, Reinert reli es heav ily on ap peal o n a ps ychiatric co nsult the d ay afte r sur ger y. Dr. Joseph Antonowicz, a psych iatrist, repo rted tha t: The pat ient tells me that he
re memb e rs essentiall y nothing of the even ts that le d to hi s hospit al izat ion here. He t el ls me that the po lice ha ve inf orm ed him that theysuspect

him of having
m urderedShawn. He is qui t e surpri sed by this. Th e patie nt is
v e ry te ar fu l at t

he lo ss of

Sha wn and se ems to gen ui nel y mis s hi m. He states that

he currently does have suici dal ideation, although he doe s no t hav e a p lan a t this tim e. The patien t is an ale rt,
co operati ve youn g ma n wh o appears quite sa d. He also appea rs very befuddled andsho ws s ome disorganization in his thought process. He tends to be som e what
r ambl ing and a t times is m ildly loosenedin his a s so ci atio ns . H e se ems quite bew ildered by wha t’s going on as w ell as fri ghtened. There are no hallucinati ons. There do not appear

to be del us ions present a t this time. However, the patie nt is somewhat guar ded in his hi sto ry. A ffect i s depress ed. Sen soriu m: He is ori ented times three. Memory: 2 of

3 ob jects at 5 minutes. Sim iles: G ood

. Proverbs: Qu ite con crete . I n sight : Limited. Judg men t: Good on formal test ing. IMPR ESS IONS : The patien t is

a 27 year ol d whi te male admi tted to the Lehigh Vall ey Hospi tal Centeron 0 3/ 10/91 f

ol lo we d self infli cted stab wo unds with sl ashed wrists. He is currentlyunder arrest
on s us picion of

having murdere d his roommate. The patient ha s essen tially no recoll ect io n of even ts leadi ng to and including these alle ged occurrences. At the present ti me he is confused, overwhelmed, frightened and seemed somewhat d isorga nized in his t hough t processes. Wo rking diagn oses a re: 1. Psycho genic amn esia versus malingering. 2. Pos sible reactive psychosis. I am uncertai n about the presence o f psyc hosis i n this case, although he does see m inordi natel y bewildere d and disor ganized. These pieces o f evidence are used by Drs. Bo rnfr iend a nd S adof f in the ir affidavits. Dr. Bornfriend writes: Reinert wa s in the Operating Room for laparotomy and te ndon rep air
u ntil around 4:00 i n the aft ernoo n
. During surgery , he was given many anesthetics, inclu din g F enta nyl, a synthetic narcoti c, an d R obi nal, a sedati ve and m uscle r elaxa nt. Without t he above medications, any pa tie nt wo uld b e in sev ere pa in after suc h ex tens ive s urg ery. I t was, theref

o re, clear

that t he
narco tic and sedati ve and m uscle20

relaxa n t effec ts of t h e s e medicati ons persi sted a nd remained duri ng the course o f M r. Reinert’s being interviewed by t

he police and that w h en these m edications w ore off, Mr. R einert wa s in seve re pain and re qui red 4 mgs. of morphi ne. In additi on, the fact

that a physi cian to ld police office rs that Mr. Reinert’s heal th would not be threatened by their qu estionin g him does not im ply tha t he was cogniti vel y and mentall y cl ear enough for the m to do so.
Dr. Sad off re capitu lates the traum atic
even ts precedi ng t he stabbi ng, the impressi ons of D r. Antonowicz, t he rep orts of the famil y members who sa w Reinert after th e s ur gery , a nd the LVMC re cords. He concludes: One is usua lly in a fairly confus ed state of mind foll owing surgery with genera l anest hesia, and is not

thinking as clea rly
us ua lly, as one does after sever al days . Scot ha d just

been througha serio us altercation with his lov er, had lost his l over by death and had been i n a s tate of shoc k him self following loss of large quantit ies of blood due to self- infli cted and other wounds to his wrists and h is abdomen. He appeared conf used to his mother on thetele phone and also w h en sh e visited him a t his resi dence shortl y t he re af te r. He also appe ared le ss than clear to his mother, stepfat

her, pas tor and femal e friend whil e in the hospit al fo llo w in g s ur ge ry. Thus, for allthe rea s o ns noted above, it i s my opi ni o n, w ithin
reaso nable medical and psychiatric
ce rta in ty, that at the t ime of the ta k ing of the st atement of Scot Reiner t, he was not at his clearest th inking and was under the influe nce of the shock of t he loss of his lover, the sho ck of hi s o wn wounds and rec e ntly emerging fr om gene ral a nesth esia w ith abdominal surgery

and that his will and stre ngth and cl arity of mind
were all impaired. It is more likely than not that

at thetime he was inter rogatedby the poli ce and given his Miranda ri ghts, his emoti onal state was so impa ired tha t he w ould not have been able t o resist effe ctively the de m ands of the policeat thetime or t

he request s of the police. It

would se e m tha t his statement wo uld n ot be to tally
vo lu nt ar y, as he may choose, when in a cl e arer state of mind, to resist giving s uch a statem ent, espe cially under the advi ce o f his atto rney, if he had b een a llow ed to s ee his attorney prior t o the interrogation. The not e of Dr

. Ant onowicz, the psychiat rist who examined h im in consult ationone day after he was admitt ed and then three da y s later, in dicat ed a clear ing of hi s sen sorium on the sec on d examinati on. This implie s t hat his first examinati on showed Scot to be less than cl ear, and that wa s one21

day after his admis sion or one day afte r the inter rog ation

. . . . Th us, it i s for al l thes e reasons that i t is my op inion, w ithin
reas onab le me dica l cert ainty, that a t t he ti me of the taki ng of the statement by the police , Scot Rein er t was in such a weakened stat e of e mo tional c ond itio n following the shock to his sys tem from t he death of hi s lover , the wounds th at

he ha d t o hi s o wn bo dy, th e medicati on that hewas under, the loss of bl ood, the surgic al procedure unde r general anesthes ia, that

his mentalstate was not clear

enough for him t o be competentto waive his M i randa warnings or to g ive a tru ly volu ntary statem ent. W e fi nd these ar gum ent s underwhelming, and conclude t hat theydo not even com e close to rend ering th e state tri al judge’s findings of fa ct unre ason able under the to tality of the r eco rd, o r in any way undermine her

co nc lusi ons of law under the A EDPA standar d. The Bornfriendand Sadoff af fidavits are extrem ely general ized and conclusoryand, at all eve nts, do not cou nter t he
cons iderab le evidence o f Reine rt’ s co mpe tence to waive his Miranda rights and to mak e a statement which was credited by the suppress ion j udge , to whose fi ndings heavydeference i s owed under AE DP A. I nde ed, th ey a lso re ly on statem ents that t

he judge di scredi te d. Ad dit io na lly, we note that the Superi or Cou rt also made fi ndings of fact cons onant with those of J udg e M cG inley, see supra

Part II , whi ch are entitl ed to defer ence. See Sum ner v . Ma ta , 449 U .S. 539 (198 1). 4

4 Reinert urges us to follow the example of the Supreme Courts of M innes ota an d A laska a nd ru le that, in the absenc e of an elect

ronic record of the custodi al interrogation in t he hospit al (by either a udio tape o r video tape), w e sho uld suppress the confes sion as a violat ion of the F ifth A men dm ent, Six th A men dm ent, protect ions of due pr ocess, protect ion against self- incri minati on, and provi sions for effective ass ist ance of counseland
con fro ntati on. See State v. Scal es , 518 N.W.2d 587 (Minn. 1994) ( holding t hat custodi al interrogations must be recorde d wh ere fe asible); Steph an v. S tate , 711 P.2d 1156 (Alas ka 1985) (hol ding that
non-recor ded statements made duri ng the
cour se of a cus todial in terrog ation sh ould be supp ressed bec ause they we re obtained in violati on of the Due P rocess Cla use of th e A lask a C ons titutio n). While the advoc ated pol icymay be a desir able one, Reinert

can point

to no Pennsyl vania l aw supporti ng it; indeed there i s none. Even i f there were such a rule announced in Pennsylvania, we, as a federalcourt s itting in habe as jurisdictio n, w ould not h ave th e auth ority to revie w a violatio n of the state consti tuti on. It

theref ore goes without saying tha t, given that the re is no right to recorded c ustodi al interrogations under Pennsyl vania l aw, we are cert ainly not at liberty to create one. Insofar as R einert invo kes th e Fifth and S ixth A men dm ents of the Federal Constitution, he invokes a22

IV. The Ineffect

ive Assis tance of Coun se l Cl ai ms A. F ailure o f State Trial C oun sel to C all a Medical Expert

to Testi fy at

the Supp ression H earing as to R einert’s Alleg ed M ental a nd P hysical Ina bility to Vo luntarily an d K now ingly W aive H is

Miranda Righ ts Reinert clai ms tha t hi s tri al counsel
was ineffective for faili ng to cal l an expert medical or psy chiatric witness to tes tify about his phy sicaland mental conditi on at the time h e w aived his Miranda rights. In ordersucce ssf

ully to claim ineffec tive assis tance of co u nsel, Reinert must
es tablish both th at h is a tto rn ey’ s pe rformance was o bjectively unre asonabl e and that, but for t

he defici ent perf

ormance, there would h ave b een a reaso nable prob ability of a dif fere nt o utco me
. See St ric kland

v. Washingt

on , 466 U.S. 668 (1984). Reinert can make neither showing here. After revi ewing the re c ord , the Supe rio r Court found that trial c ounsel tho roug hly cross- examined a ll th e Com mon wealth’s witnesse s regar ding Rei nert’s men tal and physical s tate at t h e ti me he was given his Mi r anda warnings and when he made statement s to the polic e and medical s taff: “We conclude that tri al
counse l wa s not in effe ctive f or failin g to call medical expe rts at the s upp r ession hea ring .” Inde ed, the state court followed the relevant Pennsyl vania authority for the proposit ion that t

rialcounsel nee d not intr oduce expert te stimony on his client’s beha lf if he i s ab le e ffectivelyto crossexamine prosecution witnesse s and e licit helpful testim ony. See Commonw e alth v. Wil liams , 640 A.2d 1251, 12 65 (Pa. 19 94). Trial coun sel w as sure ly able to do so here. The Su per ior Court ’s rej ecti on, under Wil liams , of Reine rt’s clai m that hi s tri al counsel was ineff

ec tive fo r failing to call
an expe rt witne ss w ith resp ect to h is
m ental and phys ical conditi on was no t a n unre ason able applic ation of the standar ds
s et forth i n Stri ckland in light o f th e evidence from polic e officer s and medical personnelthat Reinert ’ s wa iver of his Miranda ri ghts was knowing an d
vo lu nt ar y. Reinert’s claim must therefore fail. Furthermor e, we reject the noti on, advanced at oral a rgum ent, t hat Reine rt shou l d be enti tled to an ineffect ive assis tance of co unse l hear ing at th is juncture. Given the well developed record in t his cas e and our anal ysi s of it abov e , we do not see what more useful i nfor mation could be el icited at this time.
B. F ailure to Info rm R einert o f H is Right to Tes tify

at theSuppressi on Hearing Reinert contends that his s tat e tri al
c ounsel was ineffective for not informing him of h is right

to tes tify

at the suppress ion hear ing. At t he suppress ion hearing Reinert ’s counselcall ed h is purport ed federalright

to have a
cu st odi al in te rr ogati on rec or de d. He does not, however, ci te anyauthori ty for t hi s p r op os i t i on ; ag ai n the r e i s n on e. We will, at this juncture, decline to infer a federalright

to have custodial inter rogati ons recor ded.23

mother, step fath er, a female fri end, and h is mother’s pasto r to testify ab out h is physi cal conditi on post-s urgeryand prior to his st atement to the officers. Re inert’s motherand s tepfa ther also testified to Reinert’s cond ition prio r to his tra nspo rt to the hospit al (and prior t o his i niti al statement). Additional ly the medical records of LVM C were before the suppress ion court. The suppressi on co u rt thus had before i t a consi derable amount of eviden ce supporting Rein ert’ s position that he was not competent

to give a

statement
or to waive Miranda right s. We do notsee that Reinert’s testimo ny wo uld have added anyt hing to the mix in his fav or, and, as the Pen nsylvan ia Su perior Co urt obse rved, Rein ert failed to state w ith any spe cificity wha t his t esti mony would have be e n and/orhow his testim o ny would have alte red the outc ome of t he hearing. The Superior Court concl uded that Rei nert had fail ed to est ablis h that hi s clai m had argu able m erit , that his counsel’ s acti ons were un reasonabl e, or t hat he suffe red prejudi ce. In our view , the Distri ct Cou rt
correc tly conc lud ed that the state cou rt’s resol ution of

this clai m was not o bjectiv ely unreasonabl e. The Sup eri or Court also found that

Reinert had fail ed to show that he was prejudi ced by t

he fail ure of counsel to inform him of hi s right to tes tify

at t he suppress ion hea ring , i.e

. , that t here was a
reaso nable proba b ili ty that, but for
counse l’s alle ged error , the r es ult of t he proc eedin g w ould have been diffe rent. 5

5 While we need not deci de whether
coun sel’s pe rform ance wa s def icient, it is worth noti ng that Rei nert’ s test imony mig ht h ave bee n risk y to his def ens e.

Reinert testifie d extensi velyat trial about the entire i ncident

leadi ng up to and fol lo win g the d eat

h of Sea n Br ady . By taking t he stand at

the suppr ession hearing, Reinert

may have been providi ng the Commonwealth with the
mean s to impeac h his testimony. In United Stat

es v. Salvucci , 448 U.S. 83, 93-94 (1 980), the Su preme C ourt reserved the q uestion w hether Simmons v. United State s , 390 U .S. 377 (196 8), precludes the use of a d efenda nt’s testimo ny at a sup pressio n hea ring to impeac h his testimony at trial. The C ourt noted , how ever, th at a nu mb er of c ourts considering the que sti on had held that such tes timonyis admis sibl e as evide nce of im pea chm ent. Id . at

94 & n.8 (citing Gra y v. Sta te , 403 A.2d 853, 858 (Md. Ct. Spec. App. 1979) (noting that nothing in Simmons precludes u se of def endan t’s testimony at

suppress ion heari ng for purp ose o f imp each men t at trial); Peo ple v. Sturg is , 317 N .E.2d 545 , 547- 48 (Ill. 197 4) (sam e); People v. Douglas , 136 Cal. Rptr . 358, 363 ( Cal. Ct. App. 1977) (holdi ng that de fendant’ s test imony at suppress ion heari ng was admissibl e for impeachment purposes becau se defendant t ook the st and in his tri al and testified in a m anne r incon sistent w ith his pretrial tes timon y)). Were we to ado pt a simil ar interpret ation of Simmo ns and conclude that suppr ession testi mony was fair game for impeachment pur poses, the acti on of putti ng Reinert on the st and durin g the s upp ression hearin g cou ld have itself

poten tially becom e sub ject to24

Fi na lly, we cons ider the affid avit submitted by Reinert’s tri al attorneyDiane Dickson. In our vi ew, the Dickson affid avit, which constitutes a con clusory concessi on of ineffect ivenes s by t

rial
coun sel, does not mitigate the propriety of the action s taken durin g the tim e of tria l, and doe s no t aff ect th e ou tcom e.

V. Conclusion
In li ght of

our extens ive revi ew of the record before u s, we concludethat t he sta te tri al court ’s deci sion t o deny R einert’s mo tio n to su ppre ss th e st at eme nts at is sue was not a n unre ason able determi nationof the facts in light of the evi dence present ed in the sta te court pro cee din gs, and that i t was neit her contrary to nor an unr easonab l e applic ationof cle ar ly e stabl ished fede ral law as determined by t he Un it ed State s S uprem e Court. To the extent that t he state tri al court ’s fi nding on the onepreMiranda st at ement made to Office r Zimmerman wa s in fac t unrea sona ble in light of the evi dence prese nted bef o re it, the stat ement should hav e bee n suppresse d

. However, the admis sion of duplicative statements was proper , and the error was therefore harmless.
A s for Reinert’s c laims of i neffecti ve assis tance of counsel, he h a s failed to dem onstra te that

he was prejudi ced by his
counse l’s performan c e, and the state court’s conclusi ons on the i ssue were not contrary to oran un reaso nable applic ation of clearly establ ished fede ral l aw as determi ned by the Uni ted St at es Supreme Co urt. W e wi ll t

herefore a ffirm the order of the Dist rict Court deny ing the pe tition.

an allegation of ineffecti veness.